The Colorado Building Families Act became effective January 1, 2023

By:  Kim Adamson

The Colorado Building Families Act (HB20-1158) (“CBFA”) became effective January 1, 2023.  CBFA requires all large group insurance plans issued or renewed in Colorado to cover infertility diagnosis, treatment for infertility, and fertility preservation services.  CBFA is inclusive in expanding the definition of infertility coverage to include single unpartnered individuals and the LGBTQ+ community.


All large group (more than 100 employees) health benefit plans issued or renewed in the state on or after
January 1, 2023, shall provide coverage for the diagnosis of and treatment for infertility and standard fertility preservation services, including:

  • The CBFA will cover up to three completed oocyte IVF egg retrievals with unlimited embryo transfers by the guidelines of ASRM, using single embryo transfer when recommended and medically appropriate.  Fertility preservation includes people with cancer and others at risk of medically induced infertility.
  • The health benefits plan may not impose:
  • any exclusions, limitations, or other restrictions on coverage of fertility medications that are different from those imposed on any other prescription medications covered under the health benefit plan;
  • deductibles, copayments, coinsurance, benefit maximums, waiting periods, or other limitations on coverage for the diagnosis of and treatment for infertility and standard fertility preservation services that are different from those imposed on benefits for services covered under the health benefit plan that are not related to infertility.


  • Individual and small group policies are exempt unless the Federal Department of Health and Human Services (HHS) determines that coverage for fertility services does not require defrayal by the state; if HHS makes such a determination, coverage for the individual and small group markets will be required 12 months after the determination.
  • Employers who are self-insured are exempt from the requirements of the law.
  • A religious employer may request, and the plan must grant an exclusion from the coverage requirement if the coverage requirement conflicts with the religious organization’s bona fide religious beliefs and practices. If such a religious employer obtains an exclusion, it must provide its employees with reasonable and timely notice of the exclusion.
  • If an employer’s insurance plan is an out-of-state one, employees will likely be unable to take advantage of the new Colorado mandate.


Definition of Infertility/Patient Requirements:

  • Infertility means a disease or condition characterized by: (a) the failure to impregnate or conceive; (b) a person’s inability to reproduce either as an individual or with the person’s partner; or (c) a licensed physician’s findings based on a patient’s medical, sexual, and reproductive history, age, physical findings, or diagnostic testing.
  • Failure to impregnate or conceive means the failure to establish a clinical pregnancy after 12 months of regular, unprotected sexual intercourse or therapeutic donor insemination for a woman under the age of 35 or after six months of regular, unprotected sexual intercourse or therapeutic donor insemination for a woman 35 years of age or older. Conception resulting in miscarriage does not restart the 12-month or 6-month clock to qualify as having infertility.
  • Diagnosis of and treatment for infertility means the procedures and medications recommended by a licensed physician that are consistent with established, published, or approved medical practices or professional guidelines from ACOG or ASRM for diagnosing and treating infertility.
  • Standard fertility preservation services mean procedures and services that are consistent with medical practices or professional guidelines published by ASRM or ASCO for a person who has a medical condition or is expected to undergo medication therapy, surgery, radiation, chemotherapy, or other medical treatment that medical professionals recognize to cause a risk of impairment to fertility.


States that Currently Mandate Private Insurers to Cover Some Form of Fertility Coverage Are: 

Arkansas, California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Louisiana, Maine, Maryland, Massachusetts, Montana, New Hampshire, New Jersey, New York, Ohio, Rhode Island, Texas, Utah, and Virginia.

Is Infertility a Reason for FMLA?

Under the Family Medical and Leave (“FMLA”), employees are entitled to up to 12 weeks of job-protected leave for their own serious medical conditions, including infertility-related disabilities, if they have worked for their covered employer (employing 50 or more employees within 75 miles) for at least 12 months and worked 1,250 hours over the past 12 months.  Note that California employees are entitled to infertility leave under the California Family Rights Act (CFRA) Leave Policy.  Employers should check their applicable state medical leave laws.

Other Reproductive Rights Concerns in Colorado

Following the Supreme Court’s decision in 2022 to overturn Roe v. Wade, Colorado remained a state with some of the least restrictive abortion laws in the country.  However, hospitals in the state that operate under the Ethical and Religious Directives for Catholic Health Care Services oppose reproductive health care that interferes with procreation—including abortion, tubal ligations, vasectomies, and most contraception.  In 1996 Centura Health was formed through a merger of Catholic Health Initiatives and Adventist Health System and is the largest Catholic health system in the country. Centura Health has 16 hospitals in Colorado and three in Kansas. The Catholic hospitals follow Catholic directives, while the Adventist hospitals do not.  Mercy Hospital in Durango is a member of Centura Health and will stop all permanent birth control options in April 2023.  Saint Joseph Hospital in Denver and St. Mary’s Medical Center in Grand Junction had previously elected to eliminate permanent birth control options. It has been up to obstetricians to tell their patients that they will have to go elsewhere for permanent birth control.;

Another Colorado hospital stops letting women get their tubes tied (